Skyles v. Bollman

• Decision Date: 31 October 1884
• Parties: SKYLES, Assignee, v. BOLLMAN et al., Appellants.
• Court: Missouri Supreme Court

85 Mo. 35

SKYLES, Assignee,

v.BOLLMAN et al., Appellants.

Supreme Court of Missouri.

October Term, 1884.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

Noble & Orrick for appellants.

(1) The bill of lading was not delivered to the bank by the distilling company, or anyone authorized by it to deliver the same as security for the payment of the drafts, or otherwise; and hence the bank got no title for any purpose as against Bollman & O'Hara. If Blumb had no authority to endorse the bill of lading, surely he had none to deliver without endorsement. (2) The instruction given for appellants was proper which told the jury that if “they believed from the evidence that the drafts drawn by the distilling company on Gregory & Stagg were delivered to Skilling, Carter & Ahrenz, by the distilling company, for collection only, and not as collateral to secure a prior indebtedness of the distilling company to Skilling & Company, they should find for defendants.” The evidence of Mr. Blumb shows that the drafts were for collection only, and, furthermore, it is apparent the bank did not rely upon the bills of lading as collateral, because it first had notes of Sheber, and others, then a mortgage on the distillery, then, in February, 1876, a deed to the property, for security. The distilling company drew checks on the bank without reference to the state of the account, because the bank had the deed.Finkelnburg & Rassieur and Garland Pollard for respondent.

The delivery to the bank of the bill of lading, with the drafts drawn against the proceeds of the shipment attached, as security for the payment of the drafts, transferred the title to the highwines to the bank as completely and effectually as though there had been an actual delivery of the highwines themselves, subject to the acceptance of the drafts by Gregory & Stagg. Mich. Cent. R. R. v. Phillips, 60 Ill. 190; West. U. R. R. v. Wagner, 65 Ill. 197; Broadwell v. Howard, 77 Ill. 305; Peters v. Elliot, 78 Ill. 321; O. & M. Ry. Co. v. Kerr, 49 Ill. 458; Bank of Davenport v. Homeyer, 45 Mo. 145; National Bank Green Bay v. Dearborn, 115 Mass. 219; National Bank Chicago v. Bailey, 115 Mass. 228; Newcomb v. B. & P. R. R. Co., 115 Mass. 230; First National Bank v. Crocker, 111 Mass. 163; 3 Parsons on Contracts, 487. It is not necessary that the bill of lading be indorsed on delivery, or that the name of the transferee in any manner appear upon it; a simple, manual delivery of the bill, unindorsed, with the intention of thereby transferring the property therein mentioned, either absolutely or as a pledge to secure a draft, passes the title to the property to the transferee of the bill. Bank of Davenport v. Homeyer, 45 Mo. 145; Peters v. Elliott, 78 Ill. 321. An antecedent debt is a sufficient consideration for the delivery of a draft and bill of lading to secure the same. Peters v. Elliott, 78 Ill. 321. The person who first gets the bill of lading (though only one of a set of three) gets the property which it represents; he need not do any act to assert his title which the transfer of the bill of lading itself renders complete, and any subsequent dealings with the others of the set are subordinate to the rights passed by that one. Barber v. Meyerstein, Law Reports, vol. 4, House of Lords Cases, p. 317; Caldwell v. Ball, 1 Durnford & East, p. 205; Valle v. Cerre, 36 Mo. 587; 3 Kent's Com. (12 Ed.), p. 208. Instruction number two, given for defendants, was well calculated to mislead the jury. The uncontradicted evidence in the record shows that the bank was to apply the proceeds of these highwines to the payment of their claim against the distilling company, and it made no sort of difference whether the bank took the drafts in payment, and gave the distilling company credit at the time; or, whether they were to collect them and then give credit for the proceeds on their claim; in either case it held the bill of lading as security, and had the right to hold the highwines as against any subsequent purchaser from the distilling company.

BLACK, J.

This cause was here before, and is reported in 73 Mo. 665. The cause was again tried in the circuit court in conformity with the principles of law announced on the former hearing. There was a second verdict for the defendants, from which plaintiffs appealed to the court of appeals, where the judgment was reversed, and the defendants bring the cause here by appeal. The main facts in the case are substantially the same as when the cause was here before, and they need not be again stated. It is now conceded that one hundred of the one hundred and fifty barrels of the highwines were sold to the defendants, by Sherber, on the morning of the 26th of February, 1876, before the bill of lading was delivered to the bankers, Skilling, Carter & Ahrenz. The latter received the bill of lading from Blumb long before defendants purchased the remaining fifty barrels, so that this is really the only amount now in controversy.

The additional question, not before determined, grows out of an instruction given on the second trial, at the instance of the defendants. It is as follows: “If the jury believe from the evidence that the two drafts, each for $7,000, drawn by the distilling company on Gregory & Stagg, were delivered to Skilling, Carter & Ahrenz by the distilling company for collection only, for account of distilling company, and not as collateral to secure a prior indebtedness of the distilling company to Skilling, Carter & Ahrenz, they will find for the defendants.”

This instruction, we think, must be understood to assert the proposition that if the bank received the drafts solely for the purpose of collecting them, and without any right to apply the proceeds to the account of the distilling company, then the plaintiff could not recover. It, therefore, becomes essential to determine whether there was any evidence in the cause to justify the giving of this instruction. While it is true the evidence shows that the distilling company made a mortgage to the bankers to secure a debt of some $12,000, and subsequently, on the first of February, 1876, made an absolute deed to them of the distillery property, for the consideration of $18,000, still it shows beyond all dispute that they continued to make large advances to the distilling company from the date of the agreement, in 1874, to the date of these drafts. At this time the company was indebted to the bankers in about $18,000; of this, $12,000 had been advanced on the twenty-third of February, 1876, to enable the...